The Court of Appeal on 20/11/2012 in the course of considering several writ applications that came up before it has referred to the Supreme Court in terms of Article 125 of the constitution the following question relating to the interpretation of Article 107 (3) of the Constitution

“Is it mandatory under Article 107 (3) of the Constitution for the parliament to provide for matter relating to the forum before which the allegations are to be proved, the mode of proof, burden of proof, standard of proof etc., of any alleged misbehavior or incapacity in addition to matters relating to the investigation of the alleged misbehavior or incapacity?”

This question was referred in respect of all seven writ applications considered by the Court of Appeal on that day.

It is appropriate at this stage to set out the provisions of Article 125 (1) which is as follows.

“The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the interpretation of the Constitution and accordingly, whenever such question arises in the course of any proceedings in any other curt or tribunal or other institution empowered by law to administer justice or to exercise judicial or quasai-judicial functions, such question shall forthwith be referred to the Supreme Court for determination. The Supreme Court may direct that further proceeding s be stayed pending the determination of such question.”

The preamble to the 1978 Constitution assures to all people inter alia “FREEDOM, EQUALITY, JUSTICE, FUNDAMENTAL HUMAN RIGHTS and The INDEPENDENCE OF THE JUDICIARY as the intangible heritage that guarantees the dignity and well being of succeeding generations of the people of SRI LANKA”.

The power of removal of the judges of the Supreme Court and the Court of Appeal upon an address of parliament is check provided by the Constitution to sustain the balance of power between the three organs of the Government. The exact nature of the investigation contemplated by Article 107 (3) is a question which has not received judicial attention. In this reference it is necessary to consider this particular matter as it has a link to the question referred to this Court by the Court of Appeal.

Without a definite finding that the allegations have been proved no address of parliament could be made for the removal of a judge. Thus the ‘Investigation’ referred to in Article 107 (3) is an indispensable step in the process for the removal of a judge of the Supreme Court and the Court of Appeal. The investigation leads to a finding whether the allegations made against the Judge have been proved or not.

The finding that the charged allegation has been proved is the indispensable legal basis for the address. Thus a finding, after the investigation contemplated in Article 107 (3), that the allegation against the Judge has been proved is the final decision which directly and adversely affects the constitutional right of a Judge to continue in office.

In a State ruled by a Constitution based on the rule of law, no court, tribunal or other body (by whatever name it is called) has authority to make a finding or a decision affecting the rights of a person unless such Court, tribunal or body has the power conferred on it by law to make such finding or decision. Such legal power can be conferred on such court, tribunal or body only by an Act of Parliament which is ‘law’ and not by Standing Orders which are not law but are rules made for the regulation of the orderly conduct and affairs of the Parliament. The Standing Orders are not law within the meaning of Article 170 of the Constitution which defines what is meant by ‘law’. The power to make a valid finding, after the investigation contemplated in Article 107 (3), can be conferred on a court, tribunal or body or only by law and by law alone.

The matters relating proof being matters of law, also will have to be provided by law and the burden of proof and the mode of proof and the degree of proof also will have to be specified by law to avoid any uncertainty as to the proof of the alleged misbehavior or in capacity without leaving room for the body conducting the investigation to decide the questions relating to proof according to its subjective perception.

The right of the judge under investigation to appear and be heard being a fundamental principle of natural justice should also be provided by law with a clear indication of the scope of the ’right to be heard ‘ such as the right cross examine witnesses, call witnesses and adduce evidence both oral documentary.

The selection of the body to investigate the allegations of misbehavior or incapacity and its composition and the manner in which the investigation is to be conducted (procedure) are all matters to be decided by parliament in its wisdom keeping in mind the necessity to ensure the ‘equal protection of the law’ enshrined in the Constitution.

The Attorney General and the learned President’s Counsel and other learned counsel for the parities who sought to intervene submitted that the power of removal of the judges of the Supreme Court and the Court of Appeal is a power of parliament. We are unable to accept this submission.

There is a constitutional right given to members of parliament to move resolution containing the allegations of misbehavior or incapacity against the judge of the Supreme Court and Court of Appeal and the right to make an address of Parliament to be presented to the President for the removal of such judge for proved misbehavior or incapacity. The power of removal of such judge is the power of the President.

In view of the reasons we have set out above we answered the question referred to us, as set out at the beginning of this Order as follows.

“It is mandatory under Article 107 (3) of the Constitution for the parliament to provide for matter relating to the forum before which the allegations are to be proved, the mode of proof, burden of proof, standard of proof etc., of any alleged misbehavior or incapacity in addition to matters relating to the investigation of the alleged misbehavior or incapacity”

This answer to the question referred to us and this Order is applicable to Supreme Court references Nos. 4, 5,6,7,8 and 9 of 2012.

The reference made to this Court involves a matter which concerns the Judges of the Supreme Court and the Court of Appeal. In dealing with the question we therefore kept in mind that the objectivity of our approach itself may incidentally be in issue. It is therefore, in a spirit of detached objective inquiry which is distinguishing feature of the judicial process that we attempted to find an answer to the question referred to us. We have performed our duty faithfully bearing in mind the oath of office we have taken when we assumed the judicial office which we hold.

Before we conclude it is pertinent to invite attention of all concerned to the words of the late Hon. Anura Banadaranaike MP, the then Speaker of Parliament containing in his ruling dated 20th June 2001. He said as follows

“However Members of Parliament may give their mind to the need to introduce fresh legislation to amend the existing Standing Orders regarding motions of impeachment against Judges of the superior courts. I believe such provision has already been included in the draft Constitution tabled in House in August 2000.” (Hansard dated 20.06.2001 Column.1039)

2000 draft Constitution did not see light of day as a new Constitution.

We express our gratitude to the excellent assistance rendered by the learned Attorney General, the learned President’s Counsel and the other learned counsel who appeared for the other petitioners and the learned President’s Counsel and other learned Counsel who appeared for the parties who sought to intervene.

~~~~~~~~~~~~~~~~~~~

An application for Writ of Prohibition was filed by former Ceylon Chamber of Commerce Chairman and a Fellow of the Institute of Chartered Accountants of Sri Lanka and of the Chartered Institute of Management Accountants, UK, a former President of the Ceylon Chamber of Commerce and LMD Sri Lankan of the year 2001 Chandra Jayaratne. K. Kanag Iswaran, President’s Counsel, appeared for Jayaratne.

The petitioner sought a Writ of Prohibition and an interim order to restrain the PSC from continuing the investigation into the impeachment motion.

S. L. Gunasekera, senior lawyer who appeared for President’s Counsel Dr. Jayampathy Wickramaratne argued that the procedure set out in Standing Order 78A of the Standing Orders of Parliament which has been used to impeach Chief Justice Bandaranayake was unconstitutional and patently an unfair and unreasonable procedure and it lacked transparency and integrity.

The petitioner claimed that the said Standing Order prejudicially affected the independence of the judiciary and it was detrimental to the interest of the legal profession and also the public interest and sought an interim order to prevent PSC members from taking any step under the said Standing Order against CJ Bandaranayake.

The Court of Appeal November 20, 2012 referred to the Supreme Court for its constitutional interpretation of Article 107(3) of the Constitution on the procedure to be adopted on the impeachment of a Judge.

39 Responses to Impeachment: Full Text Of The Supreme Court Determination Today

0

0

Chandra Jayaratne,
Not just getting this judgement but delivering it to the speaker (hopefully with no bribe to fiscal), and even he throwing it to Diyawanna Oya is rather boring to me.
Do you know what interest me: Tell us Mr. Jayaratne, what exactly has Kanag advise you to do next?

Time has come to impeach Mahinda Rajapakse and Chamal Rajapakse for causing malicious harm and disrepute to the judiciary, the legislature, the executive offices and thus the sovereign people of Lanka.

Villager,
It sounds like you are implicating Mr. Jayaratne that he is taking guidance from Justice. This shows bias on your side. The Justice who sat on the bench are clean and honest people, if not they could have given a decision the next day the case was filed. So first do not be blind and accuse honest and honorable people. Mr. Jayaratne keep up the good work you are doing.

Will the impeachment proceedings against the CJ come to an end now? Will parliament amend its impeachment procedures – standing orders- to comply with the requirements of the constitution? What are options available if the president and parliament refuse to accept the ruling of the Appeals Court? Would they change the standing orders to relaunch the impeachment proceedings?
Is it going to be a do unto death battle between the president plus parliament and the judiciary?
The Appeals Court judgement provides a way out for the impeachers. The law in this instance must be seen to be upheld by the people. By doing so the government will redeem itself in the eyes of the people. If not, it is going to be unfortunately all downhill for the government.
This is also a warning signal for the government to correct itself where it has and is acting wrongly and reset governance on the right track. President Rajapakse is the only person on the horizon who has the capacity to do this. He has to transform himself into a statesman overnight to achieve this. I hope and pray he is upto this challenge. If he fails, very tough times are ahead for him and his government. The people are wide awake and cannot be put to sleep easily again. Every move of the government will be closely watched hereafter. This will not be comfortable for a government that has had its way for a long time. However, it will be good for this long suffering country.
I hope and pray wisdom prevails.
Dr.Rajasingham Narendran.

“President Rajapakse is the only person on the horizon who has the capacity to do this. He has to transform himself into a statesman overnight to achieve this.”
You are dreaming my dear friend. He the President Rajapakse has never lived in his entire life like a statement. He always uses dirty and cheap tactics to manipulate the situation. That is the truth.

It is not faith, but hope. It is hope that Mahinda will use his obvious positive talents to make this country a better place and hope that Sri Lanka could be made a better place with the ‘ Known Person ( Devil to some and a God-send to others) ‘ already in place with a two third majority in parliament . It is also the hope that a strengthened and assertive judiciary will make the executive and the legislature act judiciously . It is also the hope the judiciary itself will always defend our constitution, which defines our sovereignty.
Dr.Rajasingham Narendran

Truth must triumph. M R who orchestrated all this drama behind a screen now must realise that he is now a discovered man.None will trust him him now.
Yes all credit for winning the war but you behaved not as an honest honourable leader and lost all the goodwill He has to fall in line to act within civilised democratic norms not engage rowdys like former peon MERVIN SILVA.I knew this bugger from the CWE days as a viper and a depathnaya.

A Govt which ignores the rulings of the courts will also lose all legality to function. The so called representatives of the people should know the saying ‘those in glass houses, should not throw stones’.
The people now have the opportunity to question the shady deals of the govt and bring the criminals to justice. No one can be above the law, not even the members of the exclusive Diyawanna Club.

To give into the Courts findings will go against the Dictatorship agenda
of the regime Bros. This is the question and if MR can afford to miss
this opportunity, as they are in a haste to establish the Family rule
for ever.

So far so good, but I am an old cynic. Either: The regime will ignore the ruling and do as it will – that is go through with an illegal “impeachment” in defiance of the law. Or: It will subvert the import of the SC determination by some strategem, and have its way by subtrefuge or other means.
Have no illusions about the nature of this regime. Hence the basic task remains unchanged, to educate the masses and to mobilise them to safeguard their own democratic rights.

The Chief Justice is not above the law. Somehow the President is. Do you realise that? Nixon believed he could get away with Watergate and every American President has committed murder by proxy. So if the CJ has to be impeached so be it.
When the President finishes his term maybe Ranil will get you people some satisfactiom but then where is the UNP and where is the LTTE, BTF, GTF and TAG?

The constitutiton of any country is supreme. The executive, the legislature and the judiciary derive their powers from the constitution. None of these, and no individual, is above the constitution and the Rule of Law.
The constitution of SL does not permit the legislators above the Rule of Law and the judiciary.
Further, any decision in the legislature should be based on “evidence” and not on “hearsay”.
The three judges Appeal Court has summoned 11 legislators to appear in court today. But, the UNP and the UPFA legislators have decided to defy the court order, thereby defying the constitution, to which they have taken an oath of allegiance.
This act is an absolute contempt of court and the constitution, punishable by law.
The legislators should have appeared in court, explained their position and allowed the court to decide on the validity of their claim, if any. By their absence, the court can issue a “judgement in default”.
The legislators have ignored the fact that Shiranee Bandaranayake, though CJ, has constitutional rights and access to justice from a court of law, as a citizen of SL.
In the same manner, the legislators violated the constitution and the Rule of Law, to commit war crimes and Tamil genocide, with the West and the UN turning a blind eye.
It is high time the UN reorganises itself to be more democratic.
Definitely, SL should be severely punished and the people of Tamil Eelam be granted independence.

According to the constitution and the precedence, the speaker had formed the PSC to investigate 14 charges against the CJ. NO CJ backer talked about one single charge and shown she is innocence but procedures and etc against inquiry to stall that investigation.
After PSC found CJ guilty for three of those charges, the CJ herself has filed a case against the speaker and members of the PSC for the validity of the Constitution and the Standing Orders to investigate her. And ‘her judges’ gave a ruling in her favour.
This way, soon, she could file cases in ‘her Appeal Court’ to challenge all the articles and the standing orders and grant 13A, and investigate War Crimes and finally give the separatists their Eelam. That’s the name of this game.
No point electing members to Parliament; educated back coats can do it all for us as well. My foot.
Leela

Villager,
I am surprised that you do not understand the fundamentals of our political system. What you are defending is governance by decree, as in a dictatorship. The parliament at present rubber stamp that could give the executive the power to even order sex change in individuals, which power old JR lamented his constitution did not give him.
Our government cannot be a junta, backed by a rubber stamping parliament and an effete judiciary.
Dr.Rajasingham Narendran

Dr.Narendran,
My concern is not a bogey of dictatorship right now, but how to keep schemes and plots by NGOs and their pay masters out. Was not Lee Kuan Yew accused as a dictator and Dr. Mahathir Mohamad as a corrupt dictator? President Park Chung Hee of South Korea was an absolute dictator. But they all developed their economies rapidly to such an extent all three were named by Time magazine as top ten Asians of the Century.
Not just you, we too have our own criticism on many aspects of governance by MR. I am sure people understand that to rule a country in a democratic system is not like eating cakes or like giving judgements in a court. He has to deal with all types of people we elect and still stay popular.
What is important is, in spite of many shortcomings of MR; people consider him the best bet to keep the country together and make economic progress at the same time. That’s why he win elections. It’s not cheating as some dudes imagine.
For most people free and fair election is the measure of democracy and not these court juggleries. And MR gives it more than they want it. That’s why opposition cannot find enough people to have a successful protest.
Leela

Villager,
He has to work efficiently within a system in a democracy. He cannot subvert the system in order to do what he wants to do-right or wrong, the way he wants to, if this is the way now, we are living under a dictatorship. If it is to be way in the future, we are heading into a dictatorship.
The long war and the mindset developed as a result, had brought us to the brink of dictatorship. It is hard to play by the rules of democracy, once the rulers get used to getting things done in the military way.
However, efficient the military way looks, when adopted in civilian governance it proves a disaster.
Dr.Rajasingham Narendran.

Good judgment. Good lesson for the corrupt leaders – never play with fire. What about disenrolling of lawyer members of the PSC who failed to give their presence in Court. One thing is certain – Security will be reduced to Judicial Officers.

Let Lila or villager lie in peace. The villager has not replied any of the comments!
What is the court going to do about contempt of court? If SB went to jail what about others govt or Ranil’s ambassadors ? SB, please protest!
Or is the court going to ignore this since upsetting the MaRa regime may lead to stone/bomb throwing at the houses? Wijedasa R has probably succumbed to threats or was it Shenali W’s article?

The regime will have it’s way,despite the ruling of the Appeal Court,and there will be a coterie of born suckers who will applaud every move of the Regime.But the whole world is watching and they will collectively pull the string that will eventually ISOLATE Sri Lanka from the rest of the world, except a few countries which are only keen on fattening themselves at our expense.

The whole world was watching when our heroes decimated LTTE and killed Pirapaharan and his terrorist gang. We, only have followed uncle Sam! This lady will be kicked out the same way all countries in the IC sacked their judges. I feel pity for her for she has become a political animal with the ghost of Pirapaharan all over her soul.
What world you are talking? Do you know that the US is in debt to the tune of $16+ trillion? That is almost $50,000 for each man, woman and child in the US. They are on the verge of a fiscal cliff. Fortunately we have no oil for them to rob. So, they’ll not sojourn here or waste few dollars they still have on a useless but corrupt woman and pain in the butt terrorist Eelamists. Wait and see how Rajapakse play his cards.
Leela

Hat off to Mr. Jayaratne. He has done his duty by the country. The state media is misleading the people.Government spokesmen like Keheliya and the Deputy Speaker have started talking poppy cock.The Deputy Speaker says that the impeachment is a matter between the Parliament and the Chief Justice and there is no need for a third party to enter the scene.He says that the Parliament is exercising the judicial power vested in it by the people.He cites Article 4 of the Constitution to support his point- the very Article that negates his claim:Article 4(e) clearly says that Parliament is required to exercise the judicial power delegated to it by the people through courts and other tribunals recognized by the Constitution “except in regard to matters to the privileges, immunities and powers of Parliament…” This clearly shows that the Parliament cannot exercise the judicial power directly in regard to removal of a judge.
The interpretation of the Constitution comes under the sole jurisdiction of the Supreme Court and now that it has given its ruling, the Parliament and the Executive have to abide by it. Therefore, the PSC probe report now before the Parliament is a dead letter. Any further action in pursuit of the report like the debate in Parliament on it is against the law- an infringement of the Constitution because the interpretation of any provisions of the Constitution by the Supreme Court becomes part of the Constitutional law. I can understand the type of scum of the earth hiring three wheeler drivers to stage rowdy demonstrations against the Chief Justice uttering falsehoods to mislead the people, but can we tolerate supposed to be educated and civilized individuals trying to hoodwink the ordinary people?

The “Daily Noise” Editor, a disgusting cheap slipper sucker kept by the regime must be living in cuckoo land. This fellow is supposed to be Lawyer? And he says “This is serious and legally the Supreme court Judges are in contempt of Parliament.” If this is law of the land he knows, God forbid,This fellow should be struck off the Register as insulting the intelligence of Judges of the Supreme court.May be he wrote this crap in the usual cheap alchoholic haze he frequently indulges in.

The Courts in England and Wales are subject to the rule of Parliament. They represent the people and that is where Democracy is laid out. Judges are bound by Parliament so cut out the crap “Doctor”. Even in France where our constitution is “copied from Parliament reigns Supreme and if you want to kiss the slippers of the LTTE and treat the Peresident as a dictator you have to admit you have got your wires crossed. Bandaranayake was appointed by a Bandaranaike. Remember?

Most of our parliamentarians remain silent because they are wiser than we think . They either know which side their bread is buttered and/ or that their opinions do not count, even if intelligent and wise. There are others who bark on command, because their talent to do so is recognised and used. There are others who because they are lawyers think they can make nonsense sound sense and are used for this purpose. There are others who know they are stupid and are wise enough not to open their mouths. There are yet others who are stupid, but like the sound of their own noise. All in all they are an interesting menagerie. There is one of course who has sold his soul and stature for no reason at all.
The state media is of course kept to lie, distort and exaggerate, and rarely tell the truth. I noticed that over the past several days the news readers on state TV appeared to be embarrassed reading what they had to! . The state media follows in the footsteps of that infamous Nazi propaganda minister -Goebels- who believed that a lie repeated many times becomes the truth! If we are to have good governance in this country, the first step is to divest the state of its media outlets.
The worst among all were the university academics who were paraded on state TV lend credence to a sordid drama.
I suppose this is what we call democracy in this beautiful isle !
Dr.Rajasingham Narendran

THAMBY RASA NARENDRAN, IT IS ABOUT TIME WE ALL GOT TOGETHER AND GOT RID OF THESE TWO TIMING, LYING, MURDEROUS, THUGS, RAPISTS, CHILD MOLESTERS WHO ARE BRINGING DISREPUTE AND DISGRACE TO OUR WELL RESPECTED AND ADMIRED CITIZENS OF THIS BEAUTIFUL ISLAND PARADISE.
PRIME MINISTER OF SINGAPORE, RECENTLY SAID, THAT THESE ASSHOLE BROTHERS, WERE NOTHING BUT BLOOD THIRSTY RACISTS, WHO WILL NEVER GIVE THE MINORITIES WHATEVER IS RIGHTFULLY DUE TO THEM, IN THEIR OWN MOTHERLAND. HE MEANT EQUAL RIGHTS AND EQUAL OPPORTUNITIES. THE MINORITY ARE AT THE MOMENT TREATED LIKE FOURTH CLASS CITIZEN, NOT EVEN AS SECOND CLASS.
DO WE AGREE ON THE ABOVE?.
WITH ALL THESE SHIT THROWN AROUND ME, IT IS A SHAME TO SAY THAT I AM A “SRI LANKAN” CITIZEN.

Oh Danny boy,
I agree we have to have big changes in the system , modes and persons who govern us. The persons who govern are the most critical elements and they have to be instruments to change the system and modes of governance. The big question is who will replace them? Do you see the any possible replacements around? Please list the persons you can think of .
Dr.Rajasingham Narendran

It is now very clear that, you and the JVP are like our national treasures. In the absence of true , Uncowardly patriots like you, and absolute cowards but, true patriots like us . We have to worship you and bless you. Please be careful of the Sri Lankan Killers ,they are worse than the Indian rapists. Hats off to the Indian people and the Indian media. At least they know, how to stand to gether to get the mess cleaned up.

What I understand is this NOT that issue of Independence of Judiciary or to be protected Rule of Law by CJ-her vested interest social clans.In reality Challange behind CJ’s Impeachment is nothing but urgent agenda is to outstead MR ruling party in Power, an A FORM of legal battle in the Court of law.
It is long-term political target of deteriorate social class and Vested interest bunch of clans attempt to oustead MR Govt. by Former Commender Armed Forces. As well as Ex-army chief made a similar attempt.
They never accpect Mahida Rajapakasas’s PEOPLE MANDATE elected by 2009 Electroial VERDIT.
CJ is playing a leading role of Political agenda to restore, the anti-Democractic ERA of TYRANNY in 1994.
The whole echelon insolvent few Judges in Judiciary, who are commited on behalf of given political aganda design by imperious forces to coverup of Legal Order and Legal Logic.
Is not quite possible to settle within Judiciary or Court of Law ,indeed to be addressed by the SOVERGENITY of Parliment; that excerise as well as PEOPLE’s SOVERGNITY.
This the only way in democratic Path to overcome and challenge ongoing serious corruptiond created by CJ to undremine the Sovergenity of Parliment.